Perfect Foods, Inc.v.John D. Gullahorn

Trademark Trial and Appeal Board

Mar 21, 2006

No. 91160978 (T.T.A.B. Mar. 21, 2006)

Mailed: March 21, 2006

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Perfect Foods, Inc.
v.
John D. Gullahorn
_____

Opposition No. 91160978
to application Serial No. 78247326
filed on May 8, 2003
_____

Dennis T. Griggs of Griggs Bergen, LLP for Perfect Foods,
Inc.

John D. Gullahorn, pro se
______

Before Hohein, Hairston and Kuhlke, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Applicant, John D. Gullahorn, seeks registration of the
following mark

THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Opposition No. 91160978
2
for goods identified in the application as “cat collars and
cat clothes” in International Class 18.1 Applicant has
disclaimed the word “products” apart from the mark as shown.
Opposer, Perfect Foods, Inc., has opposed registration
of applicant’s mark, alleging, inter alia, that: opposer
“asserts priority of use by virtue of its sale of ‘fresh
vegetables, particularly for use as a pet treat,’ namely
natural wheatgrass” in interstate commerce at least as early
as January 2002; opposer filed an application for
registration of its mark “COOL CAT WHEATGRASS PET TREAT”
which was suspended in view of a potential conflict with
applicant’s prior-filed application; and, as applied to
applicant’s goods, applicant’s mark so resembles opposer’s
previously used mark as to be likely to cause confusion, to
cause mistake, or to deceive under Trademark Act Section
2(d), 15 U.S.C. §1052(d).
Applicant filed an answer by which he has denied the
salient allegations of the notice of opposition.
The evidence of record consists of the pleadings
herein; the file of the opposed application; the testimony
depositions (with exhibits) of (1) Harley B. Matsil,
opposer’s president and owner, (2) Alyse M. Matsil,
opposer’s vice president and secretary-treasurer, (3) John

1 Serial No. 78247326, filed May 8, 2003, alleging a bona fide
intent to use the mark in commerce. Trademark Act Section 1(b),
15 U.S.C. §1051(b).
Opposition No. 91160978
3
D. Gullahorn, applicant, and (4) Dr. Jean R. Gullahorn,
applicant’s “co-owner and co-operator” and expert witness,
in her capacity as a veterinarian. In addition, during
rebuttal opposer submitted, under a notice of reliance,
opposer’s requests for admission and the cover sheet of
applicant’s discovery responses.2
Before turning to the merits of this case, we must
address two preliminary issues: (1) opposer’s motion (filed
June 6, 2005) to strike the testimony deposition of
applicant, John D. Gullahorn; and (2) the effect of
applicant’s deemed admissions.3 Opposer’s argument in
support of its motion to strike Mr. Gullahorn’s testimony is
essentially distilled in the following excerpt: “The
applicant’s deposition was of its own witness, noticed as a
testimony deposition on oral examination, but conducted as a

2 The letter attached as exhibit B is not proper matter for
introduction into the record by way of notice of reliance and has
been given no consideration. Trademark Rules 2.120(j) and
2.122(e).

3 Opposer has also raised objections to specific testimony and
exhibits for the first time in its brief. We consider these
objections to be waived inasmuch as these specific objections
were not made at the deposition and could have been “obviated or
removed” at the time of the deposition. Trademark Rule 2.123(k);
Fed. R. Civ. P. 32(d)(3)(A). See also Pass & Seymour, Inc. v.
Syrelec, 224 USPQ 845 (TTAB 1984). Moreover, we find no merit to
opposer’s objection; opposer does not specify its reasons for
these objections in each case nor are the reasons apparent.
Similarly, we consider applicant’s objection, raised for the
first time in its brief, that opposer’s testimony regarding the
out of state point-of-sale displays from 1988-2000 and exhibit
nos. 5, 6, 7, 8 and 14 are hearsay, to be waived. Applicant’s
failure to attend opposer’s properly noticed deposition does not
affect the waiver. Moreover, we find that the testimony in
question does not constitute hearsay.
Opposition No. 91160978
4
deposition on written questions in the face of opposer’s
standing objection. Proper notice with filing and service
of written questions as required by TTAB procedural rules
was not performed.” Opposer's Br. p. 4 (June 6, 2005). We
first note, that in an earlier Board order, issued on May
25, 2005, based on a telephone conference conducted on that
same date, the Board granted opposer’s motion to attend
applicant’s testimony deposition by telephone. In the
order, the Board clarified that applicant is representing
himself. In addition, it is clear from the order that
opposer was aware of how the pro se applicant would be
conducting the deposition: “In response, applicant contends
that his wife, who will be reading questions to him during
his deposition and who has been designated as a witness for
applicant....” Board Order p. 2 (May 25, 2005). Despite
this prior knowledge opposer made no objection during the
Board telephone conference as to the manner in which the
deposition was to proceed. At the deposition, opposer first
objected, under Fed. R. Evid. 615, to the presence of
applicant’s wife in the room inasmuch as she was also a
witness, whereupon she left the room, making this objection
moot. Opposer also objected that applicant was conducting
an improperly noticed deposition upon written questions
because applicant had prepared some notes and questions that
Opposition No. 91160978
5
he was using to guide himself during the deposition. What
follows is a sampling of the colloquy:
Mrs. Gullahorn: Very well. Perhaps we should
have Mr. Gullahorn ask himself his questions and
answer them and at that time I can be out of the
room. Would that be satisfactory?

Mr. Griggs: Yes. If he is reading from a list of
questions or notes, then we still have the same
objection that we have not been provided a list of
these questions by – according to the rules of
prior notice and given an opportunity to review
them. So if he does that, he is going to be
subject to the same objection and we still ask
that you fax that list of questions to us.

Mr. Gullahorn: Well, we will just proceed with
you having noted your objection.

Mrs. Gullahorn: And I will leave the room.

Mr. Gullahorn: And I will make my statement, and
you know, we will move forward and let the Board
decide; all right?

Mr. Griggs: Okay. Is it my understanding, then,
that you are going to go forward with Mrs.
Gullahorn asking you questions?

Mr. Gullahorn: No. We’re going to let her leave
the room.

Mr. Griggs: All right. Then, if you are going
forward and if you are reading from a list of
prepared questions or notes, we, once again, state
our objection as previously noted and ask that you
fax those to us and let us read those as you go
along.

Mr. Gullahorn: I am not – I am not going to
stipulate to that or I am not going to do that, so
your objection will just have to stand. (John D.
Gullahorn Dep. 16:9-25; 17:1-15)

Taking one’s own testimony, is, certainly, somewhat
awkward; testimony should be presented in a question and
Opposition No. 91160978
6
answer format, Trademark Rule 2.123(e)(2), and each question
should be followed by its answer, Trademark Rule 2.123(g).
Applicant’s deposition was taken before a court reporter and
notary public and was transcribed on paper with numbered
lines. Applicant, not surprisingly, prepared notes that
included some questions that would help guide the
progression of the deposition and submission of evidence in
an orderly manner. Opposer seems to misapprehend the
purpose of Trademark Rule 2.124 which provides for
depositions upon written questions. Parties use this
onerous procedure when a witness is not available to be
present for oral testimony; it is most frequently used for
witnesses outside of the United States. The witness here
was obviously present to take oral testimony and Mr.
Gullahorn’s notes to himself that included the questions he
wanted to present in oral testimony do not constitute a
deposition upon written questions. In view thereof,
opposer’s motion to strike the testimony deposition of Mr.
John D. Gullahorn is denied.
We now turn to the effect of the deemed admissions.
Opposer argues that in view of the deemed admissions
applicant may only rely on its filing date for priority
purposes. The pertinent admission requests read as follows:
For each product and/or service identified by
Applicant in its response to Interrogatory No. 3,
admit that Applicant has not used Applicant’s mark
as a trademark in connection with the actual, bona
Opposition No. 91160978
7
fide sale and shipment of a product to a customer
located at an address in the State of Florida.

For each product and/or service identified by
Applicant in its response to Interrogatory No. 3,
admit that Applicant has not used Applicant’s mark
as a trademark in connection with the actual, bona
fide sale and shipment of a product to a customer
located at an address outside of the State of
Florida.

For each product identified by Applicant in its
response to Interrogatory No. 3, admit that
Applicant has not used Applicant’s mark in
connection with the actual, bona fide sale and
shipment of a product to a customer located at an
address in the State of Florida prior to May 8,
2003.

For each product and/or service identified by
Applicant in its response to Interrogatory No. 3,
admit that Applicant did not use Applicant’s mark
in connection with the actual, bona fide sale and
shipment of a product to a customer located at an
address outside of the State of Florida prior to
May 8, 2003.

For each product identified by Applicant in its
response to Interrogatory No. 3, admit that
Applicant has not used Applicant’s mark in
connection with the actual, bona fide sale and
shipment of a product to a customer located at an
address in the State of Florida prior to January
1, 2002.

For each product and/or service identified by
Applicant in its response to Interrogatory No. 3,
admit that Applicant did not use Applicant’s mark
in connection with the actual, bona fide sale and
shipment of a product to a customer located at an
address outside of the State of Florida prior to
January 1, 2002.

Notably, opposer did not make interrogatory no. 3 or
applicant’s response thereto of record; therefore, we do not
know to which products or services these deemed admissions
Opposition No. 91160978
8
apply. Therefore, they cannot serve to rebut applicant’s
testimony and evidence regarding its first use of its mark.
In view thereof, we have considered all evidence properly
made of record pertaining to applicant’s first use of the
applied-for mark.
PRIORITY
Turning first to the issue of priority, because opposer
has not pleaded any registrations, opposer must rely on its
common law use to prove its priority. Opposer’s witness,
Harley B. Matsil, opposer’s president and owner, testified
that since 1988 opposer has used the mark COOL CAT
WHEATGRASS PET TREAT on point of sale displays and that
opposer has sold wheatgrass under COOL CAT WHEATGRASS PET
TREAT since 1988:
Q. When did you develop Cool Cat?

A. In 1988 we simply made a small sign that said
Cool Cat Wheat Grass so that consumers could see
that there was a tray that was cut up in small
pieces for them and thinking that may be they
would get it for their cat.

Q. That was a result of the sales that you
noticed that these businesses were doing around
1987?

A. That’s correct, yes.

Q. How did you identify the Cool Cat product for
cats?

A. We simply drew a picture of a cat’s face. My
wife drew a picture of a cat’s face on a piece of
cardboard, and we affixed it to the wall just
above the tray that was cut up into small pieces,
and it said the words Cool Cat above the head.
Opposition No. 91160978
9

Q. So that identified the product?

A. Yes.
...

Q. Can you recall who the first customer was?

A. Yes. That was Down-To-Earth.

Q. You had previously stated that your first sale
was an in state sale to Down-To-Earth, correct?

A. Yes.

Q. And do you recall what year that sale was
made?

A. That was in ’88. (Dep. pp. 7-8)

...

Q. Going back to Opposer’s Exhibit 1 regarding
sales to Down-To-Earth; you have previously stated
that the sales began also in 1988, correct?

A. That’s correct.

Q. How did you identify that product?

A. Cool Cat Wheat Grass Pet Treat. (Dep. p. 12).

...

Q. What kind of trademark label or insert was
used for the out of state buyers?

A. We had a hand drawn cardboard poster that said
Cool Cat Wheat Grass Pet Treat. (Dep. p. 14).
...

Opposer’s testimony regarding the sale of wheatgrass is
supported by documentary evidence in the form of sales slips
dating from 1988. While there is no supporting documentary
evidence that shows the mark used in conjunction with the
goods prior to 2000, the testimony of a single witness can
Opposition No. 91160978
10
be sufficient to prove priority.4 See 3 J. Thomas McCarthy:
McCarthy on Trademarks and Unfair Competition § 16.06(2)
(4th ed. 2005). Applicant attempts to undercut this
testimony with evidence that “no where on [opposer’s]
website was the wordage ‘Cool Cat’ used, no where was a
pictorial view of the pet wheat grass product” and further
that “A Google Internet search for the wordage ‘Cool Cat
Wheat Grass’ was not found.” App. Br. p. 11; Jean Gullahorn
Dep. pp. 19, 20 and 29 Ex. Nos. 16 and 18. Applicant also
points to opposer’s advertising flyer that “calls ‘Cool Cat’
wheat grass a new treat for pets and uses phrases such as,
‘is now available,’ ‘offered for the first time,’ ‘time for
pet grass to come to New York.’” App. Br. p. 12; Harley
Matsil Dep. Ex No. 14. However, the fact that opposer may
not have advertised or sold its product on the Internet does
not serve to sufficiently rebut uncontradicted testimony
regarding its sales of wheatgrass under the COOL CAT mark in
the form of hand drawn point-of-sale displays. With regard
to the advertising flyer, although the date December 2001 is
handwritten on the flier there is no testimony to establish
this as the first date opposer used the advertising flier
and, in any event, the flier does not contradict the
testimony regarding opposer’s sales in a somewhat limited

4 Although opposer testified that the various point-of-sale
displays from 1988-2000 also included a cat design there are no
Opposition No. 91160978
11
region. This flier could simply be opposer’s attempt to
further expand its market for wheatgrass sold to pets. In
addition, opposer has submitted examples of product inserts
that have been in use since 2002 depicting the mark COOL CAT
WHEATGRASS PET TREAT. See, e.g., Matsil Dep. Ex. No. 5.
The record also includes other point-of-sale displays that
depict use of various COOL CAT marks beginning in 2001,
(e.g., COOL CAT PET GRASS and COOL CAT PET TREAT). See,
Matsil Dep. Ex. Nos. 6, 7 and 8. We note that the notice of
opposition alleges ownership of the mark COOL CAT WHEATGRASS
PET TREAT and the record establishes opposer’s prior use as
to this phrase; however, in view of the highly descriptive
if not generic nature of the words WHEATGRASS PET TREAT,
opposer’s common law trademark rights lie in the term COOL
CAT and, as such, the other examples of use in the record
that depict COOL CAT in conjunction with other descriptive
words are probative as to opposer’s common law trademark
rights in COOL CAT.
Applicant’s testimony and supporting documentary
evidence with regard to its sales of cat collars beginning
on September 21, 2000 up to the present, for the most part,
do not pertain to the applied-for mark,

examples in the record of the point-of-sale displays from 1988
through 2000.
Opposition No. 91160978
12
, rather, the testimony and evidence of
record pertains to various uses of the phrase COOL CAT
(e.g., COOL CAT FANTASY COLLARS, COOL CAT COLLARS and
design, etc.). Applicant must establish prior use of the
mark as it is depicted in the application, or establish that
it may tack on prior use of a legally equivalent mark.
Applicant has made no argument with regard to any tacking
rights nor does the record support tacking inasmuch as the
applied-for mark is not the legal equivalent of the examples
in the record of COOL CAT used in connection with other
words or designs. American Paging, Inc. v. American
Mobilphone, Inc., 13 USPQ2d 2036 (TTAB 1989), aff’d, 17
USPQ2d 1726 (Fed. Cir. 1990). See also Pro-Cuts v. Schilz-
Price Enterprises, Inc., 27 USPQ2d 1224, 1226 (TTAB 1993).
The closest example of use of this mark is only found in
Exhibit No. 6, a printout of an excerpt from applicant’s
website, as shown below, and was first used on the website
in early 2001. John Gullahorn Dep. p.39.

In any event, opposer’s 1988 date of first use is
earlier than applicant’s May 8, 2003 filing date and alleged
Opposition No. 91160978
13
date of first use of September 21, 2000.5 Thus, opposer has
established its priority with respect to its common law
rights in the mark COOL CAT for wheatgrass.
LIKELIHOOD OF CONFUSION
We now turn to the question of likelihood of confusion
under Section 2(d) and base our analysis on a consideration
of all of the probative facts in evidence that are relevant
to the factors set forth in In re E. I. du Pont de Nemours
and Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). See also,
In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003).
In any likelihood of confusion analysis, however, two
key considerations are the similarities between the marks
and the similarities between the goods and/or services. See
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976). See also, In re Dixie
Restaurants Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir.
1997).
We consider first the marks and make our determination
in accordance with the following principles. The test,
under this du Pont factor, is not whether the marks can be

5 Applicant’s argument that opposer has not shown continuous use
of the mark is belied by the evidence of record and, moreover, in
order to establish priority, opposer is required only to show
prior use, not continuous use of its mark. See West Florida
Seafood Inc. v. Jet Restaurants Inc., 31 F.3d 1122, 31 USPQ2d
1660 (Fed. Cir. 1994).
Opposition No. 91160978
14
distinguished when subjected to a side-by-side comparison,
but rather whether the marks are sufficiently similar in
terms of their overall commercial impressions that confusion
as to the source of the goods offered under the respective
marks is likely to result. The focus is on the recollection
of the average purchaser, who normally retains a general
rather than a specific impression of trademarks. See
Grandpa’s Pidgeon’s of Missouri, Inc. v. Borgsmiller, 477
F.2d 586, 177 USPQ 573 (CCPA 1973); Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106 (TTAB 1975). Further, while
marks must be considered in their entireties, including any
descriptive matter, in articulating reasons for reaching a
conclusion on the issue of likelihood of confusion, “there
is nothing improper in stating that for rational reasons,
more or less weight has been given to a particular feature
of a mark, provided [that] the ultimate conclusion rests on
consideration of the marks in their entireties.” In re
National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed.
Cir. 1985). As discussed above, opposer has established
prior use of the mark COOL CAT. Applicant’s mark COOL CAT
PRODUCTS and cat head design incorporates the entirety of
opposer’s mark. The descriptive word PRODUCTS in
applicant’s mark is not sufficient to distinguish the marks,
due to the fact that their shared phrase COOL CAT creates a
substantial similarity in sound, appearance, meaning and
Opposition No. 91160978
15
commercial impression in the marks. As discussed above the
record shows use of opposer’s mark with descriptive wording,
e.g., wheatgrass, pet treat, pet grass, but this wording is
also not sufficient to distinguish the marks. With regard
to the cat design in applicant’s mark, we accord greater
weight to the word portion of applicant’s mark inasmuch as
it is the word portion that purchasers would use to refer to
or request the goods. In re Appetito Provisions Co. Inc., 3
USPQ2d 1553, 1554 (TTAB 1987). Moreover, the cat design
merely serves to emphasize the common descriptive word
“cat.” Applicant’s argument that the word “Cool is a common
slang term used by English speaking persons” and that the
remaining portions of the parties’ marks “are dissimilar
enough as not to create confusion” is not persuasive.
Applicant’s evidence of third-party use, in the form of an
Internet search result summary obtained from the Google
search engine, of the phrase COOL CAT COLLARS, and excerpts
from websites that merely provide links to other websites
has little probative value. In re Fitch IBCA, Inc., 64
USPQ2d 1058, 1060 (TTAB 2002) (search result summary is of
limited probative value). Moreover, it appears that many of
the references are to applicant’s product and websites.
Simply put, the record does not support a finding that the
word COOL is a weak term in connection with the goods in
Opposition No. 91160978
16
issue in this case.6 Thus, the factor of the similarity of
the marks favors a likelihood of confusion.
We next consider the second and third du Pont factors,
i.e., the similarities between opposer's and applicant's
goods and the similarities between opposer's and applicant's
trade channels. We must make our determinations under these
factors based on applicant’s goods as they are recited in
the application, In re Elbaum, 211 USPQ 639 (TTAB 1981), and
opposer’s goods as established by common law use.
The goods need not be identical or directly competitive
in order for there to be a likelihood of confusion. Rather,
the respective goods need only be related in some manner or
the conditions surrounding their marketing be such that they
could be encountered by the same purchasers under
circumstances that could give rise to the mistaken belief
that the goods come from a common source. In re Martin's
Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289
(Fed. Cir. 1984). However, if the goods are not related or
marketed in such a way that they would be encountered by the
same persons in situations that would create the incorrect
assumption that they originate from the same source, then,
even if the marks are identical, confusion is not likely.

6 Applicant’s reference in his brief to five third-party
applications and registrations is of no probative value. These
applications and registrations were not made of record and three
of the five, according to applicant, are for very different goods
(wine, cappuccino and seafood).
Opposition No. 91160978
17
Shen Mfg Co. v. Ritz Hotel Ltd., 393 F.3d 1238, 73 USPQ2d
1350 (Fed. Cir. 2004).
The question of registrability of applicant’s mark must
be decided on the basis of the identification of goods set
forth in the application regardless of what the record may
reveal as to the particular nature of an applicant’s goods,
the particular channels of trade or the class of purchasers
to which sales of the goods are directed. Octocom Systems,
Inc. v. Houston Computer Services, Inc., 918 F.2d 937, 16
USPQ2d 1783 (Fed. Cir. 1990).
Applicant’s identified goods are cat collars and cat
clothes. The record shows that opposer’s goods are fresh
wheat grass for both human and animal use. When sold under
the COOL CAT mark opposer’s wheatgrass is marketed as a pet
treat for a variety of animals, including cats.
One of opposer’s advertisements describes opposer’s
goods as follows: “The same nutritious wheat grass sold at
juice bars is now available for pets.... Pet Grass should
be refrigerated and stays fresh for 1 week.” The goods are
obviously not related to one another in kind, and opposer
has conceded this point (Br. p. 19); however, different
goods that are not related to one another in kind, may be
related in the mind of the consuming public as to the origin
of the goods. Bose Corp. v. QSC Audio Products, Inc., 293
F.3d 1367, 63 USPQ2d 1303 (Fed. Cir. 2002). Opposer argues
Opposition No. 91160978
18
that although the goods are “not identical in kind” they “do
belong to the same product category: pet care accessories
for pet cats.” Br. p. 19. Opposer elaborates that “the
respective goods are related in the sense that both cat
collars and pet treats are pet care items that promote pet
safety and well being.” Br. p. 20. Opposer notes that its
“pet treat products ‘satisfy a cat’s craving for grass, aid
digestion and supply natural vitamins, minerals, enzymes and
chlorophyll,’ and ‘helps them with fur balls.’” Id. citing
Matsil Dep. Ex. No. 7. Further, opposer states that “it is
common knowledge that cat collars contain an insect
repellant for repelling fleas; that cat collars usually
carry identification tags, providing the pet’s name, the
owner’s contact information; and that such tags may also
include information confirming current rabies vaccination,
all of which are important to the pet’s safety and well
being.” Id. Opposer concludes that “a pet owner would have
an understandable concern about his pet’s safety and well
being in mind as he views a pet care product and makes his
selection and would reasonably assume that a selected item –
the item with a familiar brand – comes from the same source
as other similarly marked items that earned his satisfaction
in the past.” Br. p. 21.
Applicant argues that the goods are very different;
applicant’s “cat collars are designed for safety and
Opposition No. 91160978
19
function,” (App. Br. 20) in contrast to opposer’s live plant
which is an emetic when eaten by cats. Jean Gullahorn Dep.
p. 24.
The mere fact that the parties’ goods are intended for
cats is insufficient to warrant a finding that the goods are
related. Contrary to opposer’s assertion, there is not
sufficient evidence to establish that wheatgrass is a pet
care accessory. In addition, there is no evidence of record
to show that a single company sells the types of goods of
both parties, Recot, Inc. v. Becton, 214 F.3d 1322, 54
USPQ2d 1894 (Fed. Cir. 2000), or that consumers would likely
believe such diverse goods, cat collars and clothes, and
live wheatgrass, would emanate from the same source. On
this record, we find that the goods are not related.
Turning to the channels of trade, in view of the
absence of specific limitations in the application, it is
assumed that applicant’s goods move through the normal and
usual channels of trade and methods of distribution. CBS
Inc. v. Morrow, 708 F.2d 1579, 218 USPQ2d 198 (Fed. Cir.
1983). That would include pet supply stores, the pet supply
section of a supermarket and, of course, the ubiquitous
Internet. The record shows that opposer’s goods are sold
primarily to health food stores and juice bars. The
examples of sales to one individual pet owner and one kennel
are inconsequential and insufficient to establish a normal
Opposition No. 91160978
20
or usual channel of trade on this record.7 Opposer’s
advertisement notes that “Pet Grass products are a hot item
in fruit and vegetable stores, gourmet shops, and health
food stores ...” Further, opposer’s goods are highly
perishable, lasting approximately one week, and should be
refrigerated. The excerpt from opposer’s website also
indicates that it sells wheatgrass to florists, interior
designers, photographers and department stores for use in
displays. In addition, opposer’s website includes the
statements that opposer sells “fresh wheatgrass throughout
the New York Metropolitan area” and “can ship frozen
wheatgrass juice right to your door.” John Gullahorn Dep.
Ex. No. 16. While opposer refers to one of its customers as
a “supermarket,” it appears from the record that Adams
Fairacres Farms is a local grocery with three stores. In
any event, merely because both products may be sold in a
supermarket does not, alone, make them related goods. Hi-
Country Foods Corp. v. Hi Country Beef Jerky, 4 USPQ2d 1169
(TTAB 1987). See also, Recot, Inc. v. Becton, 214 F.3d
1322, 54 USPQ2d 1894 (Fed. Cir. 2000), on remand, 56 USPQ2d
1859 (TTAB 2000); Federated Foods, Inc. v. Ft. Howard Paper

7 We further note that during 17 years of sales opposer has only
sold its wheatgrass to one kennel and the record only shows two
sales in November and December 2000. Jean Gullahorn’s testimony,
as a veterinarian, would indicate that kennels typically would
not offer wheatgrass inasmuch as kenneling is stressful for an
animal and “it wouldn’t make too much sense to feed either a dog
or a cat...wheatgrass since we know it is an emetic.” Jean
Gullahorn Dep. p. 24.
Opposition No. 91160978
21
Co., supra. Moreover, given the nature of opposer’s goods
they would, by necessity, be sold in the produce or
refrigerated section of a supermarket as opposed to
applicant’s cat collars which would be sold in the pet
supplies section. Health food stores and juice bars are not
the normal and usual channels of trade for cat collars and
clothes, and there is no evidence of record to support such
a finding. Thus, the factors of the relatedness of the
goods and their respective channels of trade heavily favors
applicant.
Turning to the last two relevant factors in this case,
the parties’ respective goods are ordinary consumer items
which would be purchased without a great deal of care, by
ordinary consumers. The price range of opposer’s pet treat
wheatgrass product is $1.12 per pot wholesale and $1.99 per
pot retail. Matsil Dep. 33:5-19. Applicant’s cat collars
range in price from $2.00 to $15.00. John Gullahorn Dep.
Ex. No. 6. To the extent opposer’s goods may be purchased
with more care, inasmuch as they appear to be a specialty
health food product, there is nothing in the record to
establish that consumers of such items purchase them with a
higher level of care. Thus, this factor weighs in favor of
opposer.
As to the lack of evidence of actual confusion, we
cannot determine on this record that there has been any
Opposition No. 91160978
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meaningful opportunity for actual confusion to have occurred
in the marketplace, and accordingly we cannot conclude that
the alleged absence of actual confusion is entitled to
significant weight in our likelihood of confusion analysis
in this case. See Gillette Canada Inc. v. Ranir Corp., 23
USPQ2d 1768 (TTAB 1992). Moreover, evidence of actual
confusion is not a prerequisite to finding likelihood of
confusion and this factor is neutral as to both parties.
After a thorough review of this record and considering
the relevant du Pont factors, we find that, despite the
similarities in the marks, in view of the diverse nature of
the goods and the difference in trade channels and
marketing, confusion is not likely. Shen Mfg Co. v. Ritz
Hotel Ltd., supra; Kellogg Co. v. Pack’em Enterprises Inc.,
951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir. 1991) (any single
factor may play a dominant role in a confusion analysis).
Decision: The opposition is dismissed.